Care of children and parental contact

On separation or divorce there are a wide range of issues that need to be addressed by parents in respect of any children they have.

It is certainly preferable in such circumstances if matters can be dealt with by agreement between the parents but sometimes this is just not possible in the context of what can be a highly stressful situation. Our Family Group can advise you about how best to deal with the situation and hopefully reach a position where the parents can work together going forward as they will need to for the sake of the children.

Parental Responsibility

This is the right to be involved in important decisions relating to the children e.g. schooling, change of name, medical treatment, relocating abroad permanently. In the event that the parents cannot reach agreement about these decisions then the Court can make a decision based upon the best interests of the child.

Married parents share parental responsibility automatically. Mothers automatically have parental responsibility whether they are married or unmarried. Unmarried fathers can acquire parental responsibility automatically if post 1 December 2003 (irrespective of when the child was born) they are named as the father on the child's birth certificate (this date does not apply retrospectively).

Alternatively unmarried fathers can be granted parental responsibility either by agreement with the mother (by signing and registering a Parental Responsibility Agreement) or by order of the Court. A father will generally be successful with an application to Court for parental responsibility if he can show a commitment to the relationship with the child, is genuinely attached to the child and is not motivated by a desire to disrupt the mother's life.

Residence

The first issue will be which parent will be looking after the child post-separation. In many cases one parent has very obviously had the role of primary carer and it has been accepted that this should continue. If the parents cannot agree about this issue then the Court will have to decide based upon the paramount consideration of the welfare of the child taking into account the welfare checklist which includes the wishes and needs of the child depending upon their age and understanding and the best way of meeting those needs.

The Courts can, and do increasingly, make orders for shared residence to avoid the perception of one parent being favoured over the other as they have the advantage of giving the parents the feeling that they both have equal status and do not require the child to be spending equal time with each parent.  They are not, however, suitable or practical in every case and a shared residence order will only be made if it reflects the realities of the child's practical arrangements.

Contact

This relates to the amount of time a child spends with the non-resident parent. The Courts generally assume that it is in the child's best interests to have contact with both parents. This does not however mean equal time with both parents, which (see above) is often not even the case in shared residence cases.

If the parents are unable to agree then the Court can be asked to make a decision. Contact arrangements will be decided (taking into account the paramount consideration of the welfare of the child) depending upon the age and the practical realities of their day to day arrangements. A flexible and pragmatic view will be taken as contact will need to develop and evolve as the child gets older and has different demands on their life. Hopefully these changes can be dealt with by agreement of the parents but if not the matter can be dealt with by the Court.

There may be exceptions to the assumption that contact should take place (e.g. violence towards a child or risk of abduction). Generally the Court will try and avoid stopping contact entirely in the first instance and will try instead to promote contact with conditions (e.g. parent surrendering passport to avoid abduction or contact in a contact centre and possibly supervised). In very extreme cases the Court can stop contact entirely or limit it to indirect contact (e.g. letters and telephone calls).

It is very rare for a parent to be able to show that contact with the non-resident parent is not in the child's best interests as set out above and wherever possible the Court will try and promote such contact. If the parent with care persists in stopping contact they may face sanctions from the Court, the most serious being a transfer of residence to the other parent. This is rarely done but other sanctions could include imprisonment. The government is also considering other sanctions (e.g. removal of drivers licence or passport).

The clear message from the Court, however, is that the paramount consideration is the welfare of the child and that must be considered first and foremost above the concerns of the parents, despite the fact that they may be dealing with a highly stressful and potentially difficult legal battle. The Courts do not look kindly therefore at parents who are perceived to have tried to "punish" the other parent in respect of the separation or divorce by way of their relationship with the child.

Court Involvement – Children Act 1989

The Courts will, wherever, possible avoid making orders concerning children and will encourage parents to try and reach agreement. This could be either directly between the parents or through mediation or solicitors.

If, however, the Courts do have to get involved then the first stage in the proceedings will be a Conciliation Appointment at Court, when the District Judge is joined by a CAFCASS (Children and Family Court Advisory and Support Service) Officer to see if a way forward can be found. Children of 9 years old and over will also attend and see the CAFCASS Officer privately.

If agreement cannot be reached at the Conciliation Appointment then the Court will order the parents to provide statements and will instruct a CAFCASS Officer (a different one to the one who attended the Conciliation Appointment) to prepare a report for a full hearing when the Court will make a decision on the application. The CAFCASS Officer will meet both parents separately and with the children. They may also speak to third parties for instance the children's school or parents' new partners, if any.

The report is generally given significant weight by the Judge at the full hearing although the Judge does have discretion to depart from the CAFCASS Officer's recommendations if they feel it is in the child's best interests to do so. The parents (and often the CAFCASS Officer) will be required to attend the hearing and give evidence. Children of any age are not required to attend.

The starting point for the Judge is to make no order unless it is in the interests of the child to do so.

International families

The English Courts may still be involved in cases where one or both the parents are living abroad but maintain a connection with England.